Baysa v. Gualtieri

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MAT S. BAYSA,

Plaintiff,

v. CASE NO. 8:17-cv-434-T-02SPF

ROBERT GUALTIERI, in his official

capacity as Sheriff of the Pinellas County

Sheriff’s office, CHARLES REDINGER,

and STEPHANIE ARCHER,

Defendants.

__________________________________/

ORDER ON RENEWED MOTIONS FOR SUMMARY JUDGMENT BY

ARCHER AND REDINGER

This matter comes before the Court upon Stephanie Archer and Charles

Redinger’s renewed motions for summary judgment. Dkts. 43, 45, 95, 98.1 The

Plaintiff has filed a response. Dkts. 96, 97, 100.2 The Court grants Archer’s

motion for summary judgment and denies Redinger’s.

The Eleventh Circuit affirmed in part and reversed in part the prior summary

judgment order. Dkt. 88. Remaining in this case after remand is Count I,

Plaintiff’s action against the Sheriff under Monell v. Dep’t of Soc. Servs. of City of

1 These docket entries include the original two motions for summary judgment at dockets 43 and

45, in addition to renewed submissions at docket 95 and a reply to Plaintiff’s opposition (Dkts.

96, 97) at docket 98.

2 These docket entries are Plaintiff’s submissions to the renewed motions.

New York, 436 U.S. 658 (1978), and Plaintiff’s claim for “excessive force at arrest”

against both Deputies Redinger and Archer, Counts II and III, respectively. All of

these counts are brought under 42 U.S.C. § 1983.

The facts recited by the Eleventh Circuit are appropriate to repeat in this

context:

We assume the parties are familiar with the facts of this case and

summarize them only insofar as necessary to explain our decision. The

facts below are described in the light most favorable to the plaintiff.

Early morning on June 10, 2013, Baysa was playing cards at Derby

Lane Poker Room in St. Petersburg, Florida. He claims that a security

guard at Derby Lane was closely watching him. He testified that he

exited the card room and walked into the parking lot, before returning

and accusing the security guard of staring at him all night.

The security guard escorted Baysa outside. He reentered, and the

security guard again ordered him to leave. Baysa and the security guard

argued with one another, as Baysa admits. Derby Lane staff called

police to issue a trespass warning. Baysa admits that he was “told ... to

stay away [and] go outside.”

Once in the parking lot, Baysa saw movement by his car, and feared he

was being set up for a DUI. He called 911. On the call, audio of which

is in the record, Baysa was noticeably agitated and argumentative. He

stated that he felt in danger from the security guard and requested to be

picked up and taken home. He told the dispatcher that a guard requested

that he go home and stay away.

The Deputies responded to Baysa’s 911 call. Deputy Redinger spoke

with the security guard, who stated that Baysa was “acting in a

disorderly fashion” and that Derby Lane wanted to issue a trespass

warning. The security guard repeated his trespass warning to Baysa in

Deputy Redinger’s presence. Baysa testified that Deputy Redinger

restated the guard’s trespass warning, but that Baysa argued against it.

Deputy Redinger then walked over and told him they were going to

issue a trespass warning. Deputy Redinger ended the conversation by

saying “Don’t come back here anymore. You’re free to go.” According

to Baysa’s testimony at his criminal trial, Baysa began to walk away

from Deputy Redinger. But after he had taken three or four steps, he

was grabbed from behind and fell headfirst into the pavement. He

testified that his neck became twisted and he next remembered being in

Deputy Redinger’s car with his hands in handcuffs.

During his deposition in this matter, Baysa further testified that while

on the ground, he was punched and kicked all over his body before he

lost consciousness, and that he had been put in a chokehold or headlock.

Deputy Redinger testified that Baysa was “verbally ... aggressive” with

Derby Lane personnel. He further stated that Baysa walked towards the

security guard “in an aggressive stance, shoulders back, chest out,

bowing his chest up and you can see clenched fists.” Deputy Redinger

“felt there was an immediate issue where [Baysa] might strike” the

guard and stepped in to arrest Baysa.

Deputy Redinger further testified that he grabbed Baysa’s wrists to

restrain him, at which point Baysa pulled away. Deputy Redinger then

pushed Baysa against the patrol car, but Baysa broke free again. Deputy

Redinger effected a takedown by grabbing around Baysa’s shoulders or

neck.

Deputy Redinger and Baysa fell onto the pavement. Deputy Redinger

testified that he used “palm heel strikes,” or open hands where the

“striking area is the heel of your palm[,] ... somewhere from [Baysa’s]

shoulder to waistline.” Deputy Redinger used these to pull Baysa’s

hands free and handcuff him.

Baysa was arrested on misdemeanor counts of disorderly conduct in an

establishment and resisting arrest without violence; the State’s

Attorney’s Office amended the former charge to trespass. Baysa was

acquitted of both counts.

Baysa v. Gualtieri, 786 F. App'x 941, 942–43 (11th Cir. 2019); Dkt. 88.

I. The Court grants Archer’s Motion

There is No Competent Proof of Archer’s Use of Excessive Force

Stephanie Archer was a second deputy called to the scene. The Derby Lane

incident happened June 10, 2013. Archer, who responded as back-up to a call at a

location she had been before (Dkt. 43-10 at 5), did not take statements or write a

report, did not talk to Plaintiff or take him into custody, nor have any involvement

at all beyond the ten minutes or so event. Deputy Redinger testified that when he

struggled with Plaintiff, Archer did not assist him. Dkt. 43-14 at 38. Archer

retired in August 2013 after 25 years on the job, and at her deposition five years

later she did not recall the details of the event. Dkt. 43-10 at 6. This is not

surprising.

Plaintiff was deposed in this matter and plainly testified that he never saw

Archer use force upon him and he does not know if she did. Dkt. 43-11 at 135.

Plaintiff then was rehabilitated at the deposition by his lawyer and then testified

that after reading the Derby Lane guard’s incident report his recollection was

refreshed. Answering his lawyer’s leading question, Plaintiff testified that the

report refreshed his recollection and he remembered “being thrown on the hood of

the car by both deputies.” Dkt. 43-11 at 144.

Plaintiff urges Archer’s involvement is shown by this Derby Lane incident

report, found at docket 48-1. Plaintiff asks the Court to consider this report as part

of the facts related to the summary judgment issues, and states the Court rightly

should because the report is admissible at trial. Dkt. 97 at 4; Dkt. 100 at 2.

Accepting Plaintiff’s invitation, the Court attaches this report here as an appendix.

The report conflicts in many material parts with Plaintiff’s deposition. If the report

stood alone and were credited, it defeats entirely Plaintiff’s present claims. See

Dkt. 48-1. As to Archer, the report states that when the drunk and disorderly

Plaintiff was arrested for disorderly conduct by Officer Redinger, Plaintiff

physically resisted being handcuffed, “causing Deputy C. Redinger and the 2nd

responding PCSO Deputy [Archer] to forcibly place Mr. Baysa on the hood of

Deputy C. Redinger’s cruiser.” Dkt. 48-1 at 3. The only other reference to Archer

in this incident report was that Baysa continued to defy and physically resist arrest

which caused Redinger to take Baysa to the ground and put him in a “headlock”

while the Derby Lane security guard “assisted in getting Mr. Baysa [sic] hands

behind his back so the 2nd PCSO Deputy [Archer] could place Mr. Baysa in

handcuffs.” Dkt. 48-1 at 3.

Contrary to Plaintiff’s suggestion, this Derby Lane incident report does

nothing to suggest liability by Archer. In fact the report refutes her liability

entirely and shows she acted entirely appropriately to a drunk and disorderly man

who was resisting lawful arrest. See appendix to this order.

The only evidence in this case showing Archer touched Plaintiff

inappropriately is the lawyer-created interrogatory answer. Dkt. 48-5. This

defense interrogatory asked Plaintiff to identify practices and policies that “were

the direct and proximate cause of the unconstitutional use of excessive force”

against Plaintiff. Dkt. 44-5. Plaintiff answered the interrogatory:

Upon being told that I was free to go by Redinger, I turned towards my

car. After taking several steps and without warning or being told I was

under arrest, I was accosted, slammed on the cruiser, and then forcibly

and violently face planted. Immediately after being taken to the asphalt

ground face first, my head was pulled back and I was placed on a

chokehold. Because of the chokehold, I became limp and knocked

semi-unconscious. While in this state, my face was repeatedly force[d]

into the ground in addition to simultaneous blows all over my body.

After being wailed on for some time, I eventually passed out. I then

woke up in the back of the police car with my hands cuffed behind my

back, coughing up and spitting out blood.

I contend that both Redinger and Archer had no right to treat me or

anyone, the way in which I was treated on that early morning of June

10, 2013. I contend that the overly aggressive and deadly actions (i.e.,

slamming me on a patrol car and slamming me on asphalt ground,

choking me, and beating on me) of the Deputies were the direct and

proximate cause of the injuries I sustained that early morning and the

permanent physical and mental injuries that I continue to deal with.

Further I contend that each act of violence committed against me was a

custom, policy or practice of the PCSO and Redinger and Archer

simply employed what is customary and typical at the PCSO.

Dkts. 44-6; 48-5.

Plaintiff’s interrogatory answer does not save the day for him and create a

legitimate issue of fact as to Archer. First, it is ambiguous as to what Archer did.

It does not state whether and how Stephanie Archer, herself, used unconstitutional

excessive force upon Plaintiff. Second, the interrogatory answer is itself refuted by

the Derby Lane incident report that Plaintiff offers.

The interrogatory answer is in effect a sworn statement or affidavit. It

conflicts materially with Plaintiff’s deposition in this case, where he flatly testified

that he could not say if Archer touched him (later to be refreshed by the incident

report that she assisted in forcibly placing him on the cruiser hood when he resisted

handcuffing). In Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,

656 (11th Cir. 1984), the Eleventh Circuit affirmed the lower court’s finding that

an affidavit that contradicted, without explanation, a clear and unequivocal

deposition could be disregarded as a sham.

Here, Plaintiff clearly stated in deposition that he never saw Archer use force

upon him and he does not know if she did. Dkt. 43-11 at 135. Later his lawyer

refreshed his recollection with the incident report that said Archer helped put him

on the hood of the car when he was resisting being handcuffed. The interrogatory

answer predated his deposition but it was no doubt written by the lawyer. And it

conflicts with his clear deposition testimony without explanation. The

interrogatory does not withstand the “sham affidavit” doctrine and create a triable

fact issue as to Archer.

Moreover, even his “refreshed” testimony that Archer helped put him on the

car hood fails to prevent summary judgment. The incident report (here in the

appendix) upon which Plaintiff relies shows Deputy Archer did not use any force

on Plaintiff other than de minimis force associated with assisting to apply

handcuffs to a resisting arrestee. See Nolin v. Isbell, 207 F.3d 1253, 1257–58 (11th

Cir. 2000) (“[T]he application of de minimis force, without more, will not support

a claim for excessive force” and “will not defeat an officer’s qualified

immunity[.]”); see also, e.g., Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir.

2013) (holding force used was de minimis where deputy “grabbed [the plaintiff] by

the arm, forced him to the ground, placed him in handcuffs” and “held [him] to the

ground for less than one minute before he helped [him] to his feet”); Croom v.

Balkwill, 645 F.3d 1240, 1252 (11th Cir. 2011) (per curiam) (affirming summary

judgment where deputy forced elderly plaintiff to the ground from a squatting

position and held her there with a foot or knee in the back for up to ten minutes,

and noting that “[e]ven if unnecessary, the force used . . . was de minimus.”);

Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (reversing denial of

qualified immunity where officer “force[d] [the plaintiff] down to the ground and

plac[ed] him in handcuffs,” which court held was de minimis force).

The record is clear that Deputy Redinger arrested Plaintiff. Plaintiff does

not contend that Archer had a duty to intervene or supervise Redinger. As to

Archer, when one considers Plaintiff’s evidence, it is uncontested that any force

Archer offered (if she applied any at all — Plaintiff waffles on this) was

“reasonably proportionate to the need for that force” given the nature of Plaintiff’s

drunken, belligerent resistance to a lawful arrest. Galvez v. Bruce, 552 F.3d 1238,

1243 (11th Cir. 2008). This case record shows no other evidence as to Archer.

Archer’s motion (Dkt. 45) is therefore granted.

II. The Court Denies Redinger’s Motion

The Court denies Redinger’s renewed motion for summary judgment on

Count II (Dkt. 43). Plaintiff’s deposition here conflicts materially and severely

with his sworn criminal trial testimony. Plaintiff’s drunken rant on the taped 911

call shows an angry, somewhat paranoid, intoxicated person. The Eleventh Circuit

has held these are matters for trial-based assessment. Plaintiff’s deposition

testimony suffices to establish a contested fact issue as to whether the force used

by Redinger at Plaintiff’s lawful arrest was unconstitutionally excessive.

DONE AND ORDERED at Tampa, Florida, on January 31, 2020.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record